People ex rel. Madigan v. Stateline Recycling, LLC ( 2021 )

2021 IL App (2d) 170860-UNo. 2-17-0860
Order filed March 9, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE ex rel. LISA MADIGAN, ) Appeal from the Circuit Court
) of Winnebago County.
Plaintiff-Appellee, )
)
v. ) No. 17-CH-60
)
STATELINE RECYCLING, LLC, and )
ELIZABETH REENTS, )
)
Defendants, )
) Honorable
(Elizabeth Reents, ) Edward J. Prochaska,
Defendant-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Justices Birkett and Brennan concurred in the judgment.
ORDER
¶1 Held: The trial court properly granted the Illinois Attorney General’s motion to compel
defendant’s compliance with a discovery request, pursuant to Illinois Supreme
Court Rule 214(a) (eff. July 1, 2014), to inspect the property at issue in this
environmental enforcement action.
¶2 Defendant, Elizabeth Reents, appeals from the trial court’s order finding her in “friendly
contempt” and imposing a monetary sanction of $100 for failing to comply with a discovery order.
The discovery order requires that she grant the Illinois Attorney General, the Illinois
2021 IL App (2d) 170860-UEnvironmental Protection Agency (IEPA), and their representatives access to inspect her property
pursuant to the Attorney General’s discovery request under Illinois Supreme Court Rule 214(a)
(eff. July 1, 2014). On appeal, this court reversed the circuit court’s decision, holding that fourth
amendment principles (U.S. Const., amend. IV) must be considered because the party requesting
the inspection in this case was the government and the matter was brought under a statutory scheme
that allowed for substantial civil penalties, injunctive relief, and although not sought at the time,
potential criminal penalties and forfeiture. People ex rel. Madigan v. Stateline Recycling, LLC,
2018 IL App (2d) 170860, ¶¶ 39-40, 43. We therefore vacated the discovery order and remanded
the case to the circuit court for application of fourth amendment principles in ruling on the Attorney
General’s motion to compel. Id. ¶¶ 69-70. The Attorney General was granted leave to appeal by
the Illinois Supreme Court. People ex rel. Madigan v. Stateline Recycling, LLC, 132 N.E.3d 326(Table) (2019) (order granting leave to appeal). The supreme court vacated our judgment, finding
that this court erred in deciding the appeal on constitutional grounds. People ex rel. Madigan v.
Stateline Recycling, LLC, 2020 IL 124417, ¶ 37. The court remanded the case with directions that
we review the discovery order for an abuse of discretion. Id. ¶ 41. For the following reasons, we
affirm the discovery order, vacate the contempt order and monetary sanction, and remand for
further proceedings.
¶3 I. BACKGROUND
¶4 The facts of this case have been fully presented in our earlier decision and the supreme
court’s decision. Therefore, we will only summarize those facts necessary to place the issues in
context.
¶5 The subject matter of this environmental enforcement action is a parcel of property of
approximately 10 acres located at 2317 Seminary Street in Rockford, Winnebago County, Illinois
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2021 IL App (2d) 170860-U(the site). Reents became the owner of the site when she obtained a tax deed to the property in
April 2015.
¶6 In January 2017, the Attorney General, on her own motion and at the request of the IEPA,
filed this civil enforcement action against Reents and Stateline Recycling, LLC, for violations of
the Illinois Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (West 2016)). 1 The
complaint, as amended, asserts several counts against both Reents and Stateline Recycling,
including allegations of open dumping of waste without a permit; disposal, storage, and
abandonment of waste at an unpermitted facility; open dumping resulting in litter and the
depositing of construction and demolition debris; and failure to pay clean construction or
demolition debris fill operation fees. Id. §§ 21(a), (e), (p), 22.51(a). The Attorney General seeks
injunctive relief as well as a civil penalty of $50,0000 for violation of the Act, an additional
$10,000 for each day the violation continues, and costs.
¶7 The Attorney General alleges that Stateline Recycling and/or its corporate predecessor,
Busse Development & Recycling, Inc., conducted an operation for the dumping of construction
and demolition debris at the site. According to the amended complaint, a July 2015 inspection by
the IEPA revealed mixed piles of concrete, brick, painted cinder blocks, asphalt, and soil at the
site, with some of the mixed material placed above ground. There was no indication of recycling
although, at the inspection, the Stateline Recycling representative stated an intention to recycle the
material. The complaint further alleges that at a subsequent inspection of the site in July 2016, the
IEPA inspector observed the continued presence of the materials seen during the prior inspection.
1
Attorney General Kwame Raoul succeeded Attorney General Lisa Madigan in January
2019 and now pursues this appeal.
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2021 IL App (2d) 170860-U¶8 In April 2017, the Attorney General issued a discovery request to Reents pursuant to
Illinois Supreme Court Rule 214(a) (eff. July 1, 2014) seeking access to the site, specifically to:
“Allow representatives of the Illinois Attorney General access to the real property
controlled and/or owned by Reents located at 2317 Seminary Street, Rockford,
Winnebago County, Illinois, including any buildings, trailers, or fixtures thereupon.
Plaintiff requests access on May 5, 2017 at 11 a.m., or at such other time as may be
agreed between the parties. At this inspection, representatives of the Illinois
Environmental Protection Agency may also accompany Attorney General representatives
and conduct an inspection pursuant to their authority under 415 ILCS 5/4 (2014).”
¶9 Reents objected to the discovery request on grounds that it was an improper attempt to
circumvent the constitutional requirement for a warrant and therefore violated the fourth
amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6 of
the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 6). After unsuccessful efforts to resolve
the discovery dispute pursuant to Illinois Supreme Court Rule 201(k) (eff. May 29, 2014), the
Attorney General filed a motion to compel Reents to permit inspection of the site. In response to
the motion to compel, Reents argued that the Attorney General was required to obtain a search
warrant to inspect the site and that the prior inspections amounted to unconstitutional warrantless
searches. She argued that the Attorney General sought to “misuse and abuse” this civil action to
accomplish another warrantless search.
¶ 10 Following a hearing, the trial court entered an order granting the Attorney General’s motion
to compel Reents’s compliance with the Rule 214(a) request for the site inspection, including the
request that the IEPA attend the inspection. The trial court reasoned that Rule 214 applies to all
civil cases and allows any party to seek inspection of real property relevant to the subject matter
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2021 IL App (2d) 170860-Uof the action. The court stated that the subject matter in this case is the premises that is currently
owned by Reents and that the violations of the Act alleged in the complaint give the Attorney
General the right to inspect the property. The court noted that “although certainly the [f]ourth
[a]mendment isn’t thrown out the window, this is not a criminal case, it’s a civil case.” The court
granted the motion over objection, finding that the “alleged landfill is a highly regulated activity
under the [Act] and, I think, the physical status of the site is highly relevant in this particular case.”
¶ 11 The trial court subsequently entered an order holding Reents in “friendly contempt” and
imposing a monetary sanction of $100 based upon Reents stating her intentions to continue to
refuse to comply with the order and to appeal. The trial court stayed the order pending appeal.
Reents timely appealed pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016).
¶ 12 On appeal, this court reversed the circuit court’s decision, holding that fourth amendment
principles (U.S. Const., amend. IV) must be considered because the party requesting access to and
inspection of the private property in this case was the government and the matter was brought
under a statutory scheme that allowed for substantial civil penalties, injunctive relief, and although
not sought at the time, potential criminal penalties and forfeiture. Stateline Recycling, 2018 IL
App (2d) 170860, ¶¶ 39-40, 43. We vacated the discovery order and remanded the case to the
circuit court for application of fourth amendment principles in ruling on the Attorney General’s
motion to compel. Id. ¶¶ 69-70. The Attorney General filed a petition for leave to appeal to the
Illinois Supreme Court which was granted. Stateline Recycling, 132 N.E.3d 326 (Table) (2019)
(order granting leave to appeal). On review, the supreme court vacated our judgment, finding that
this court erred in deciding the case on constitutional grounds (Stateline Recycling, 2020 IL
124417, ¶ 37), noting its “long-standing rule that cases should be decided on nonconstitutional
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2021 IL App (2d) 170860-Ugrounds whenever possible” (id. ¶ 41). The court remanded the case with directions that we review
the discovery order for an abuse of discretion. Id.¶ 13 II. ANALYSIS
¶ 14 On remand, we are required to consider the propriety of the discovery order issued by the
circuit court.
¶ 15 Discovery orders are not final orders and therefore not ordinarily appealable. Norskog v.
Pfiel, 197 Ill. 2d 60, 69 (2001). However, the correctness of a discovery order may be tested
through contempt proceedings, as Reents did here. See id. An order finding a person in contempt
of court and imposing a monetary or other penalty is appealable pursuant to Illinois Supreme Court
Rule 304(b)(5) (eff. Mar. 8, 2016). Review of the trial court’s contempt finding requires our
review of the order on which it was based. Norskog, 197 Ill. 2d at 69. “The trial court is given
great latitude in determining the scope of discovery, because the range of relevance and materiality
for discovery purposes includes not only what is admissible at trial but also that which leads to
what is admissible at trial.” Y-Not Project, Ltd. V. Fox Waterway, 2016 IL App (2d) 150502, ¶ 43.
Therefore, discovery orders are typically reviewed under the abuse-of-discretion standard. Carlson
v. Jerousek, 2016 IL App (2d) 151248, ¶ 24; Kaull v. Kaull, 2014 IL App (2d) 130175, ¶ 22. A
trial court abuses its discretion where its decision is “arbitrary, fanciful, or unreasonable, such that
no reasonable person would take the view adopted by the trial court.” People v. Ramsey, 239 Ill.
2d 342, 429 (2010).
¶ 16 Rule 214(a) is titled “Discovery of Documents, Objects, and Tangible Things—Inspection
of Real Estate.” The rule provides, inter alia, that any party may by written request direct any other
party to permit access to real estate “for the purpose of making surface or subsurface inspections
or surveys or photographs, or tests or taking samples *** whenever the nature, contents, or
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2021 IL App (2d) 170860-Ucondition of such *** real estate is relevant to the subject matter of the action.” Ill. Sup. Ct. R.
214(a) (eff. July 1, 2014). Under the rule, “[t]he request shall specify a reasonable time, which
shall not be less than 28 days after service of the request except by agreement or by order of court,
and the place and manner of making the inspection and performing the related acts.” Id.¶ 17 On remand, we are required to: (1) examine the Attorney General’s Rule 214(a) inspection
notice to ascertain whether it satisfied the explicit requirements of the rule, (2) consider any
specific objections asserted by Reents as to the scope, time, or manner of inspection, and
(3) address whether the circuit court abused its discretion by failing to limit the request, enter a
protective order, or supervise the discovery to ensure that the Attorney General’s inspected
targeted only what was relevant to the subject matter of the litigation. Stateline Recycling, 2020 IL
124417, ¶ 41.
¶ 18 First, we determine that the Attorney General’s Rule 214(a) request satisfies the
requirements of the rule. In the written inspection notice, the Attorney General requested that her
representatives and those of the IEPA be granted access to the site, including any buildings, trailers,
or fixtures on the site, for the purpose of inspecting the property. The request was made on April
6, 2017, and proposed a reasonable time for inspection of May 5, 2017, at 11 a.m. or “such other
time as may be agreed between the parties.” The trial court granted the Attorney General’s motion
to compel compliance with its Rule 214(a) request for a site inspection on grounds that “the
physical status of the site is highly relevant in this particular case.” This is an environmental
enforcement action alleging environmental violations at the site. It is difficult to imagine what
could be more relevant than the property itself and more reasonable than a request to inspect the
property at an agreed upon date and time. Reents presents no persuasive argument to refute this
central consideration of the relevance and reasonableness of the Attorney General’s request for a
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2021 IL App (2d) 170860-Usite inspection and the attendance of the IEPA despite her extensive arguments for application of
constitutional principles to the discovery request.
¶ 19 Next, Reents never properly objected to the scope, manner, or time of the inspection.
Illinois Supreme Court Rule 201(c) (eff. July 1, 2014) allows a party to seek a protective order to
limit discovery or to request supervision of discovery procedures in order to prevent abuse of the
discovery process. However, Reents never sought to limit the scope of discovery by requesting
either of these measures. She categorically refused to comply with the request.
¶ 20 Finally, while the circuit court can, on its own initiative, issue protective orders and
supervise discovery under Rule 201(c), we find nothing to suggest that the trial court abused its
discretion by not doing so in this case. We note that other than challenging the constitutionality
of the discovery order, Reents did not seek any specific limitation on the discovery order sought
in this case. The scope of discovery is broad and allows a party to serve a request on another party
to obtain “full disclosure regarding any matter relevant to the subject matter involved in the
pending action.” Ill. S. Ct. R. 201 (eff. July 1, 2014). As the trial court concluded, the physical
state of the site is, in fact, the subject matter of the pending action and is therefore “highly relevant
in this particular case.” Here, we cannot conclude that the discovery order issued by the trial court
was arbitrary, fanciful, or unreasonable, such that no reasonable person would take the view
adopted by the trial court. See Ramsey, 239 Ill. 2d at 429.
¶ 21 Accordingly, we hold that the trial court did not abuse its discretion in granting the
Attorney General’s motion to compel Reents’s compliance with the Rule 214(a) request for a site
inspection.
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2021 IL App (2d) 170860-U¶ 22 As a final matter, we grant Reents’s request to vacate the contempt order and monetary
sanction on grounds that she acted in good faith to test the validity of the discovery order on appeal.
See Salvator v. Air & Liquid Systems Corp., 2017 IL App (4th) 170173, ¶ 72.
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, we affirm the trial court’s discovery order, vacate the contempt
order and monetary sanction, and remand the cause for further proceedings.
¶ 25 Affirmed in part and vacated in part; cause remanded.
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